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Income Tax Appellate Tribunal, “SMC”, BENCH
Before: SHRI R.C.SHARMA, AM & SHRI VIKAS AWASTHY, JM
Assessee by Shri Bharat Kumar (AR) Revenue by Shri Amit Pratap Singh (DR) Date of Hearing 10/02/2020 Date of Pronouncement 10/02/2020 आदेश / O R D E R PER: R.C. SHARMA, A.M. These are the appeals filed by the assessee against the separate ex parte orders of the ld. CIT(A)-30, Mumbai dated 26/06/2019 and 25/06/2019 for the A.Y. 2009-10 and 2010-11 respectively in the matter of order passed U/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 (in short, the Act).
Rival contentions have been heard and record perused. Facts in brief are that the assessee is engaged in trading of ferrous and non- ferrous metals. The A.O. got information regarding assessee involved in taking accommodation bill with regard to purchases without delivery of purchases in assessee’s income. Against the order of the A.O., the assessee approached to the ld. CIT(A) who by passing ex parte order has dismissed the appeals of the assessee and also enhanced the addition to the extent of 100% of alleged bogus purchases.
In the appeal order, the ld. CIT(A) has mentioned that various notices were issued to the assessee, however, there was no compliance by the assessee. Thereafter notices of enhancement were issued but there was no compliance. From the order of the ld. CIT(A), it appears that he has discussed various judicial pronouncements including the decision of the Hon’ble Bombay High Court in the case of M/s Mohommad Haji Adam & Co. wherein the Hon’ble High Court has upheld the order of the Tribunal for making addition only to the extent of differences between the gross profit offered in case of normal purchases vis a vis bogus purchases. However, the ld. CIT(A) did not accept the decision of the Hon’ble Bombay High Court on the plea that this decision is not based on an argument with respect of Section 37(1) of the Indian Evidence Act.
Accordingly, the ld. CIT(A) has observed that “with utmost respect, this decision, though no cited by the appellant, cannot be relied upon”.
The ld. CIT(A) has not given any justification for enhancement of addition from 12.5% to 100%, therefore, in the substantial interest of justice, we set aside the ex parte order of the ld. CIT(A) and restore the merit after providing due and reasonable opportunity of hearing to the assessee.
Since the facts and circumstances of both the years are same, therefore, by following the reasoning given in the appeal for the A.Y. 2009-10, I also restore the matter for the A.Y. 2010-11 to the file of the ld. CIT(A).
In the result, both the appeals of the assessee are allowed for statistical purposes only.
Order pronounced in the open court on 10th February, 2020.